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- Volume 18, Issue 2, 2005
South African Journal of Criminal Justice - Volume 18, Issue 2, 2005
Volume 18, Issue 2, 2005
Author Kent RoachSource: South African Journal of Criminal Justice 18, pp 127 –150 (2005)More Less
South Africa's Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 is compared with Canada's Anti-Terrorism Act, 2001. The processes that led to the enactment of the two laws and the packaging and preambles of both laws are examined. The definitions of terrorist activities in both laws are compared, as are the fault elements in various offences related to terrorism. South Africa's extensive use of negligence or <I>culpa</I> liability is contrasted with Canada's use of subjective fault and various constitutional arguments concerning the necessity for subjective fault for terrorism are examined. South Africa's duty to report offence is compared with the comparable Canadian offence, and investigative hearings and powers in terrorism cases in both countries are examined with an emphasis on prior judicial authorization and a presumption of publicity. The process for the listing of terrorist groups in both countries is also compared. Conclusions are drawn that, while more limited in scope than the Canadian law, South Africa's new anti-terrorism law has a broader defi nition of terrorism, lower fault levels, a broader duty to report offence and less restrained investigative powers.
Author C.H. PowellSource: South African Journal of Criminal Justice 18, pp 151 –166 (2005)More Less
The United Nations Security Council produces a list of terrorist organizations and persons and requires states to take certain measures against these entities. This article focuses on the 'listing' aspect of the South African legislation, that is, its adoption of the Security Council list and the measures that may be taken against the entities placed on the list. The article considers various objections to the listing procedure, including those based on human rights, on the doctrine of separation of powers and on the rule of law. The main discussion centres on the doctrine of separation of powers, arguing that the doctrine has a role to play in both domestic and international law, and exploring the extent to which the anti-terrorism regime, and the listing process in particular, infringes the doctrine. The final section of the article explores the options available to South African courts should they be faced with a challenge to the decisions of the United Nations Security Council.
Moving beyond 30 years of Anglo-American rape law reforms : legal representation for victims of sexual offencesAuthor Dee SmytheSource: South African Journal of Criminal Justice 18, pp 167 –186 (2005)More Less
The South African Law Commission has proposed a number of substantive and procedural reforms to South Africa's laws governing sexual offences. This article argues that, while important in principle, these reforms are unlikely to shift police and prosecution practices or to meaningfully increase the numbers of offences prosecuted or perpetrators convicted. Support for this argument is drawn from the experiences of other Anglo-American jurisdictions in implementing similar reforms. The current law reform process does, however, present an important opportunity to consider possible reforms that have the potential to shift institutional norms informing current criminal justice practice, and to provide meaningful protection for victims of sexual offences forced to navigate that system. One such reform, which has met with some success in other jurisdictions, is the introduction of a legal representative to engage with the criminal justice process on behalf of the victim. This article looks at the legal and constitutional rationale for such an innovation and at models used in comparative jurisdictions, concluding that such a reform would go a long way towards ensuring that the existing rights of rape victims are meaningfully enforced.
Source: South African Journal of Criminal Justice 18, pp 187 –202 (2005)More Less
The article considers the current state of sentencing in South Africa, based on the judgment by the Supreme Court of Appeal in <I>S v Ferreira</I>, a case that attracted considerable media attention. Having explained the principles on which the various sentences in this case are based, two considerations are identified which, although not immediately evident, nevertheless prevent sentencing in South Africa from being more principled and less intuitive. The first consideration is the role of the sentencing discretion, and the problems that our courts experience in separating the fact-finding phase from the decision-making phase. The second consideration is that most role players in the criminal justice system have been schooled in the adversarial trial system, and have difficulty dealing with the more inquisitorial procedure required during sentencing. These considerations clearly impacted upon this judgment as well. Finally, certain recommendations are made as to how the basic principles of sentencing could be utilised to ensure more principled sentencing outcomes.
Source: South African Journal of Criminal Justice 18, pp 203 –204 (2005)More Less